Maintaining Lawful Permanent Resident ("LPR") Status

A permanent resident alien (a holder of the "green card") who spends lengthy periods of time outside the U.S. must take careful precautions to preserve his or her U.S. permanent resident status.  The green card is a "use it or lose it" visa.  Prolonged absences from the U.S. may present problems upon reentry, as the CIS may consider that the returning resident has "abandoned" his or her status.

Permanent resident status is conferred by lawful admission to the United States as a resident alien under the provisions of the immigrant selection system set out in the  Immigration and Nationality Act (the "Act").  Nothing in the Act requires the USCIS to conduct a periodic review of whether the LPR has in fact maintained permanent residence while in the United States.  Thus, unless an LPR expressly, or by behavior, manifests an intention to renounce or abandon his or her permanent resident status, questions of maintenance of status typically do not arise until the LPR has left the United States and makes application to the USCIS for readmission at a U.S. port of entry, usually a U.S. airport.

Anyone, regardless of his or her status, is presumed by law to be an intending immigrant when applying for admission to the United States.  It is therefore necessary for the returning permanent resident alien to produce a document entitling him or her to reenter the United States in such status.  In most cases this will be one of three kinds of documents:  (a) an immigrant visa, i.e., an LPR visa stamp in a passport placed by a U.S. Consulate, (b) an alien registration receipt card, (c) a reentry permit.  None of these documents, however, confers an absolute right to reentry or guarantees admission to the United States.

A reentry permit or alien registration receipt card only authorizes reentry if the returning individual in fact qualifies as an immigrant to the United States.  If the USCIS finds that the absence abroad was not temporary and that permanent resident status has been abandoned, it may conclude that the returning person is not entitled to enter the United States.  In that instance, he or she will likely be given an opportunity to withdraw the application for entry or be given a "deferred inspection" at the local USCIS office nearest his or her destination in the United States, or, if USCIS refuses entry, be scheduled for an exclusion hearing before an Immigration Judge.

A reentry permit, which allows an LPR to remain outside the U.S. for up to two years, is an important reentry document.  However, the individual must apply for a reentry permit while still in the United States and eligibility is based upon a determination by the USCIS that the alien has been lawfully admitted for permanent residence and that he or she seeks the permit in connection with a good faith, temporary absence abroad.  To obtain a reentry permit, one files USCIS form I-131, together with his or her alien resident card and two photographs.  Reentry permits are valid for two (2) years from the date of issuance and in appropriate circumstances may be renewed; they are strong, but not conclusive, evidence that the person has not abandoned his permanent residence during the period of the permit's validity.  Do not apply for a reentry permit without talking to me first.  There are some problems with it which we should discuss.

The alien registration receipt card may be presented by a returning lawful permanent resident only if the person is returning after a "temporary" absence abroad, not exceeding one (1) year.  However, returning within one (1) year is only a minimum requirement for maintenance of lawful permanent resident status.  There is a commonly held belief that returning to the United States once a year is sufficient to maintain permanent residence.  This is incorrect.  Such a return is necessary if the LPR does not possess a reentry permit, but it is not sufficient in the absence of other factors to demonstrate that the LPR has maintained his or her status.  The LPR must also show that he or she is returning to an un-relinquished lawful permanent residence in the United States.

The question of demonstrating an un-relinquished residence normally depends on whether the ties here are reasonably indicative of the LPR's continuing desire and intent to return after a temporary absence abroad.  There are three major considerations in making that determination:

• The purpose of the LPR's departure from the United States;
• The existence of a fixed termination date for the visit abroad; and
• The intention, as demonstrated from the objective factors, to return to the United States as a place of permanent employment, or as an actual home.

The location of the LPR ties, such as his family, job, and property are essential indications of intention.  For example, the LPR should have a definite reason for traveling abroad temporarily, such as for education and professional training, or for a temporary work assignment.  Employment for a definite period, even though somewhat extended, would be a sufficient purpose for departing, as long as a fixed termination date is reasonably clear before taking up employment abroad.  In addition, indefinite employment abroad, when assigned by a U.S. employer, is also a suitable purpose for absence from the country.

The LPR must possess the requisite intention to return to the U.S. at the time of departure, and must maintain that intent while outside the U.S.  While the LPR's intent is a subjective factor, it must be discernable from objective manifestations of conduct.  One important factor considered is continued payment of taxes as a U.S. resident for each year in which the LPR claims lawful resident status.  When a person with U.S. permanent residence remains outside the U.S. for a substantial period of time and does not file tax returns, the CIS is almost certain to rule that the individual is no longer a permanent resident.

The ownership of property, particularly a residence, is another persuasive, positive factor, as is the location of close family members, the maintenance of United States bank accounts, driver's license, professional licenses and memberships, charge cards and similar documents.

Remember that Immigration’s rule requiring that all foreign nationals in the United States report each change of address, applies to you for as long as you remain a permanent resident.  If is your obligation to keep the Immigration Service informed of all your address changes as they occur and definitely within ten days of moving. If you ever change residence you should mail a completed form (CIS Form AR-11) for yourself and each family member to Immigration as instructed on the form.  Be advised, recent Immigration actions indicated that the agency will begin to enforce this requirement as applicable to all non-citizens.  A change of address information sheet better explaining the requirements and Form AR-11 are attached for your convenience.

Unfortunately, there is no "bright line" rule which will define when permanent residence has been abandoned.  The LPR must retain as many objective indications of U.S. residence as possible, obtain a reentry permit if he or she plans to be outside the U.S. for more than 12 months, and should spend as much time in the U.S. as possible.

Any permanent resident that has been arrested and/or convicted of criminal charges should also discuss with an attorney whether such incident may be basis to rescind/revoke the permanent residence or to place the LPR in removal proceedings.  Make sure to seek advice before traveling abroad.